Tag Archives: foia

Sunshine Week Begins With Supreme Court OPRA Case

It’s Sunshine Week and this year it kicks off in New Jersey with oral arguments before our Supreme Court in an important Open Public Records Act (OPRA) case.

On March 15, 2021, the Supreme Court will hear Bozzi v. City of Jersey City, a case that asks whether a list of names and addresses of dog license holders are accessible under OPRA. The plaintiff seeks the list for commercial purposes–he intends to mail dog owners information about his invisible fences.  The case is listed as the second case of the day, which means arguments will begin sometime after 11:00 a.m. You can watch it here.

CJ Griffin of Pashman Stein Walder Hayden will be participating in the case and will be arguing last. Griffin filed an amicus curiae brief on behalf of Libertarians for Transparent Government, arguing that the Legislature has rejected numerous bills that attempted to exempt dog owner lists or that sought to limit the ability of commercial requestors to utilize OPRA. The amicus brief also explains that limiting this commercial requestor’s right of access will cause harm to all the other requestors who might seek lists of dog owners to benefit the public in some way.

Unfortunately, public agencies sometimes use OPRA’s privacy provision not as a shield to protect legitimate privacy rights, but rather as a sword to attack a requestor’s reason for seeking records, something that should be irrelevant.  In this case, a commercial requestor’s right to obtain public records is under attack, but in other instances the ones under attack are the so-called “gadflies” or the persistent reporters who are thorns in the sides of politicians.  If the Court decides in the City’s favor in this case, the consequences will not be limited only to the addresses of dog license owners or to commercial requestors.  Public agencies will undoubtedly think of far-fetched reasons to invoke OPRA’s privacy provision so that the balancing test applies.  Requestors will then have to sue and convince courts that that their reasons for wanting the records serve a “legitimate public purpose.”  In other words, an interest requirement will be engrafted into OPRA where one does not exist, and as a result, all requestors, whether commercial or not, will have to fight harder to access information that should be statutorily available to them as of right.

. . .

Even if this Court considered a commercial interest to be insufficient to gain access to the dog license records in this case, there are clearly other reasons for requesting these records that do advance “legitimate public purposes.”  For example, someone who encounters a neighbor’s aggressive dog might want to determine if the dog is licensed and vaccinated.  . . .  Someone who runs a local animal rights group might want to contact other dog owners to rally them to pass better animal welfare laws, to lobby for a local dog park, or to alert them to local dangers to dogs.  An animal rescue organization might want to independently verify that the dogs it has adopted out have been properly licensed and vaccinated, or it might want to screen prospective adopters to determine if they have other pets (or had other pets that they surrendered) that they are not disclosing on their adoption applications.  A watchdog group like LFTG might want to investigate whether public officials are failing to license their own pets all while hypocritically ticketing members of the public for failing to do so.  Or, it might want to verify that the list of licenses is accurate and that all of the money collected from licenses are distributed in the proper accounts and transmitted in full to the proper state agencies. . . . A research organization might seek the names and addresses of dog license owners so that it can map them and determine whether certain neighborhoods have more licensed dogs than others and whether there is any correlation to economic factors, such as income, in the ownership or licensure of dogs.

NJ Advance Media previously wrote about the case when it was pending in the trial court. Both the trial court and the Appellate Division ruled that the list must be disclosed.

Bill Would Exempt Addresses of Legislators, Probation Officers

As our readers may recall, Governor Murphy recently signed “Daniel’s Law” into law, which exempts the home addresses of current and former judges, prosecutors, and law enforcement officers from access under OPRA. A bill pending in the New Jersey Legislature would expand those exemptions to include two additional categories of persons.

Among other things, Senate Bill 3209  exempts from OPRA “that portion of any document which discloses the home address, whether a primary or secondary residence, of any active, formerly active, or retired probation officer or member of the Legislature.”

The addresses of current and former judges, prosecutors, law enforcement officers, probation officers and members of the Legislature are likely to appear in land deeds, property tax records, financial disclosure statements, and a variety of other quintessential public records that are available online in a variety of databases.

It is difficult to understand how public agencies would comply with this proposed law. There is no comprehensive list of every current and former probation officer or legislator that has ever worked or held office in this state so that a clerk would know which records to redact. NJ Advance Media has already written about how some agencies are struggling to comply with Daniel’s Law because there is similarly no master list of every current or former judge, prosecutor, or law enforcement officer that has ever worked in this state. Collectively, Daniel’s Law and S.3209 likely exempt tens of thousands of addresses.

S.3209 will be heard on January 14, 2021 at 10:15 a.m. in the Senate State Government, Wagering, Tourism & Historic Preservation Committee.

For questions about this blog or OPRA, please contact CJ Griffin at cgriffin@pashmanstein.com.

It’s Sunshine Week!

Sunshine Week, which runs from March 15 to March 21, 2020, is an annual nationwide celebration of access to public information. There are many ways that you can get involved–from filing OPRA requests, to writing a letter to the editor, to attending a public meeting. On this blog, we will write several times this week about transparency topics and success we have had recently shedding light on New Jersey government!

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To contact us about this blog post or discuss an OPRA denial, email cgriffin@pashmanstein.com or visit the “contact us” tab above.

Access Begins With A Valid OPRA Request

Each month, we receive dozens of inquiries from people who are upset that their OPRA requests were denied. The most frequent basis for denial is that the request is invalid as written. Although there are records custodians who will happily work with the requestor to fulfill a less-than-perfect request, other custodians will quickly deny any request that does not strictly comply with OPRA’s requirements.  A valid OPRA request is thus the critical first step to obtaining public records and it is important to draft a request that follows some basic guidelines.

Guideline 1:  Do not ask questions in an OPRA request. Although people usually file OPRA requests because they have questions about some public issue, an agency has no obligation to answer those questions. An agency’s only obligation under OPRA is to produce non-exempt public records. Although elected public officials may answer questions via email or at a public meeting, an OPRA request must stick to requesting documents.

Guideline 2: Provide a reasonable timeframe. Public agencies are permitted to impose special service charges where a request requires an “extraordinary” amount of time to fulfill. Requestors must be mindful of how many documents will be responsive to the request and keep the timeframe relatively narrow.

Guideline 3: Seek identifiable records. A valid OPRA request seeks identifiable documents. A request that seeks “any and all records relating to the town’s animal control services” is overbroad because it leaves the custodian not knowing what the requestor wants. Instead, requestors must identify specific, such as “I seek the following records relating to the town’s animal control services: shared services agreements for 2018, the health inspection report for the animal shelter for 2018, and all settlement agreements involving the animal shelter for 2018-2019.”

Tip: There are several ways to learn about what types of records might exist:

  1. Look for statutes, regulations and ordinances on the topic. Many government operations must comply with specific provisions of law. Animal control, for example, is highly-regulated and there are state statutes and regulations that require animal shelters to maintain certain paperwork. Looking at the statutes and regulations will help identify some records that might exist.
  2. Look at records retention schedules. All agencies must comply with the State’s records retention laws. Although the records retention schedules do not list every record that must be maintained, they provide some information regarding the types of documents an agency might possess.
  3. Request agency policies. An agency’s written policies, standard operating procedures, or operating handbooks might provide information regarding the types of written reports employees are required to generate or the types of records the agency must keep.
  4. Ask the agency. Believe it or not, many government employees will happily help a requestor identify what record exists if they know what type of information the requestor is seeking.

Guideline 4State the preferred format and method of delivery. A request should indicate if the requestor wants the records to be sent to them via email for free or if they want to receive hard copies, which cost 5 cents per page. The request should indicate the preferred format, such as an Excel file or a PDF. Stating these preferences up front in the OPRA request avoids confusion.

Following these general guidelines will help requestors overcome the first hurdle and send the records custodian on the hunt for responsive government records.

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 For more information about this blog post or any other OPRA question, please contact CJ Griffin at cgriffin@pashmanstein.com.

 

NY Times: Newspapers Should Litigate Public Records Suits

The New York Times published an great article yesterday, titled “How The Times Uses FOIA to Obtain Information The Public Has A Right To Know.” The article explains why the Times firmly believes that challenging an agency’s response to a public records request is important to transparency.

Key quote:

Although smaller newspapers usually do not have in-house counsel to litigate public records lawsuits, in New Jersey OPRA provides a fee-shifting mechanism to make it possible for to find competent counsel who will litigate denials on a contingency basis. Newspapers, journalists, and other media entities can take advantage of this fee-shifting provision to challenge denials of access without incurring any costs at all. As the Times notes, doing so greatly benefits the public and is an important part of the journalistic process.

P.S.  Remember – you only have 45 days to challenge a denial.

For more information, contact CJ Griffin.

 

Third Circuit Issues Important OPRA Decision on Legal Fees

According to N.J.S.A. 47:1A-6, a records requestor who prevails in any proceeding shall be entitled to an award of reasonable attorneys’ fees. We have written about OPRA’s fee-shifting provision before, noting that without the fee-shift most requestors would not have the funds to challenge denials of access. As a result, the state would be far less transparent.

On August 14, 2019, the United States Court of Appeals for the Third Circuit issued an important published opinion relating to OPRA’s mandatory fee-shifting provision.

The case, titled Golden v. New Jersey Institute for Technology, involved OPRA requests filed by Pulitzer Prize-winning journalist Daniel Golden, who was seeking records from NJIT to use as research for his book, “Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities.” Many of the responsive records in NJIT’s files originated from the FBI and were purportedly subject to prohibitions on public dissemination.

The records custodian reached out to the FBI to determine how to respond to the request and the FBI directed NJIT to withhold most of the records “[i]n no uncertain terms.” NJIT thus denied the OPRA requests by claiming the records were exempt.  Golden sued.

After the lawsuit was filed and removed to federal court, the FBI reviewed the previously withheld records and NJIT produced thousands of pages of documents that it had formerly deemed to be exempt. Golden moved for attorney’s fees, arguing that he was a prevailing party because his lawsuit was the “catalyst” for NJIT’s release of records that were not exempt. The District Court denied the fee motion and was “persuaded by NJIT’s position that it had acted reasonably in following the FBI’s direction.”

The Third Circuit disagreed and all but stated, “If a public agency permits a third party–even if it’s the FBI–to dictate its OPRA response, then that public agency will be on the hook for attorneys’ fees if it turns out that the denial of access was unlawful.” The court made it clear that it is the custodian who has the obligation “to parse the requested records, decide whether exemptions appl[y], and withhold documents pursuant to those exemptions” and that obligation cannot be outsourced to a third party outside the agency.

Importantly, the Third Circuit flatly rejected the argument that OPRA’s fee-shifting provision contains any “reasonableness” requirement. State courts have reached the same conclusion based on the plain language of OPRA, but public agencies still make this argument to trial courts.

This decision is important because there are often times where issues of first impression are litigated and the agency was operating under good faith when it denied a request, but nonetheless was wrong as a matter of law. In such situations, the OPRA requestor is still entitled to an award of attorneys’ fees. Indeed, OPRA contains a mandatory fee-shifting provision so that requestors can find competent counsel to litigate those types of cases.

Lawsuit Challenges Essex County Prosecutor’s Refusal to Disclose Police Videos and Name of Newark Officer Who Fatally Shot Fleeing Motorist


Last week, CJ Griffin filed an OPRA lawsuit on behalf of Richard Rivera against the Essex County Prosecutor’s Office (ECPO) relating to its refusal to disclose the name of a Newark police officer who shot at a fleeing vehicle during a pursuit in January 2019, killing the driver and injuring the passenger. The lawsuit also seeks access to footage from police body-worn cameras and dash cameras.

ECPO denied the request because it is “concerned” that the officer may refuse to testify before the grand jury if his or her name is publicly disclosed. Mr. Rivera’s lawsuit argues that this is not a lawful basis for denying access to the information and videos and that transparency is important when police-involved shootings occur.

In 2017, we won an appeal in the New Jersey Supreme Court on a similar issue in North Jersey Media Group v. Township of Lyndhurst, 229 N.J. 541 (2017). In Lyndhurst, the Supreme Court ruled that the public was entitled to learn the identities of the police officers involved in fatal shootings and see videos of those incidents “shortly after the incident,” after investigators “have interviewed the principal witnesses who observed the shooting and are willing to speak to law enforcement.” The Court stated that disclosure should ordinarily occur “within days of an incident, well before a grand jury presentation or possible trial.” In coming to such conclusions, the Court stated that the public has a significant interest in knowing the details about police-involved shootings and that non-disclosure of such information can undermine confidence in law enforcement.

As we previously wrote, in February 2018, the Attorney General issued Law Enforcement Directive 2018-1 to codify the Supreme Court’s decision.  The Directive states that videos of police-involved shootings should be released when the “initial investigation” is “substantially complete,” which means that the principal witnesses have been interviewed and the evidence has been gathered. This should “typically will occur within 20 days of the incident itself.” Only in extraordinary circumstances could a video be withheld longer than 20 days.

In this case, the police-involved shooting occurred on January 28, 2019 and ECPO still refuses to release the officer’s identity or the police videos more than three months later.

NJ Advance Media has written an article about the lawsuit, which provides more details about the underlying shooting incident. A hearing date has not yet been set by the court.

*Photo by Matt Popovich on Unsplash

“The Legal Implications of Governmental Social Media Use”

Pashman Stein Walder Hayden partner CJ Griffin has published an article in the April 2019 issue of New Jersey Lawyer magazine, titled “The Legal Implications of Governmental Social Media Use.” A full copy of the article can be viewed here:

Vendor Activity Reports: A Helpful Tool for Tracking Spending

Many people want to know how they can monitor an agency’s spending and determine how much an agency is paying a certain vendor (such as a law firm, plumber, construction company, or insurance company) or even who the agency’s vendors are. A “Vendor Activity Report” (or “Vendor History Report”) is a very helpful tool for learning this information.

A Vendor Activity/History Report details all payments made to every individual or company that was entered into the agency’s accounting software in order to receive a payment. If a bill is paid, then there is a corresponding “vendor” entry in the accounting software.  The Vendor Activity/History Report will list all of the vendors and the total amount of money they were paid during the requested time frame. Once you obtain the report and see something that interests you, then you can you can request the corresponding payment vouchers and bills/invoices for that vendor to further investigate the spending. Requestors have used the Vendor Activity/History Report to identify large reimbursements to the agency’s employees, for example.

Here are a couple examples of Vendor Activity Reports from NJ towns that we found on the Internet, so you can see what they look like and how helpful they can be:

Egg Harbor Township’s Vendor Activity Report, located here, lists all vendors for the designated time frame (2015). This type of report is helpful because you can see the total payments made to every single vendor contained in the agency’s accounting software during a specified time period. If you do not know anything about an agency’s finances or which vendors they use, you can ask for the full vendor activity report and learn who the vendors are and how much they were paid. To request this type of report, one would simply say: “Pursuant to OPRA and the common law right of access, I seek the vendor activity or vendor history report for all vendors by vendor name for payments made January 1, 2018 to present date.”

Eagleswood Township’s Vendor Activity Reports, located here on this OPRA Machine request,  provide a breakdown of all payments to an identified vendor during the specified time frame. This type of report is helpful when you know about a vendor already and just want to see how much they were paid during a specific time period. In these reports, the requestor sought the activity report for three specific vendors (newspapers). The reports show all of the payments made to those vendors. To request this type of report, one would simply say: “Pursuant to OPRA and the common law right of access, I seek the vendor activity or vendor history report for all payments made to [Insert Name of Vendor/Company] for January 1, 2018 to present date.”

If you have any questions about this topic, please feel free to contact CJ Griffin at cgriffin@pashmanstein.com

CJ Griffin Interviewed for Marketplace Reports on NPR

CJ Griffin, a member of Pashman Stein Walder Hayden’s Media Law Group, was interviewed by Marketplace regarding a prior OPRA lawsuit she brought against the City of Newark seeking its Amazon HQ2 bid.

The public radio program, “What’s in Those Amazon HQ2 Bids? It’s Not Entirely Clear” by Renata Sago and Leila Goldstein, aired on Tuesday, November 6th.

“There’s hundreds of millions or billions of dollars, of tax dollars, at stake,” said CJ Griffin, a partner at Pashman Stein Walder Hayden, who argued the case. “That’s taxpayer money. When you give tax breaks, that impacts other people, so the public has a right to know.”

To listen to the story, click here

For more background on the lawsuit, click here.